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HomeMy WebLinkAboutGillenwaterNOTICE OF TORT CLAIM June ~ , 2002 Thomas R. Galligan, Mayor City of Jeffersonville City-County Building Jeffersonville, IN 47130 Ann Marie Galligan, City Attomey City of Je£fersonville City-County Building Jeffersonville, IN 47130 Mr. Les Merkley Jeffersonville City Council Member c/o 4th Floor, City-County Building Jeffersonville, IN 47130 Mr. Dennis Frantz Jeffersonville City Council Member c/o 4th Floor, City-County Building Jeffersonville, IN 47130 Mr. Rob Waiz Jeffersonville City Council Member c/o 4th Floor, City-County Building Jeffersonville, IN 47130 Ms. Vicky Conlin Jeffersonville City Council Member c/o 4th Floor, City-County Building Jeffersonville, IN 47130 Mr. Ron Ellis Jeffersonville City Council Member c/o 4th Floor, City~County Building Jeffersonville, IN 47130 Ms. Barbara Wilson Jeffersonville City Council Member c/o 4th Floor, City-County Building Je£fersonville, IN 47130 Mr. Ronald Grooms Je£fersonville City Council Member c/o 4th Floor, City-County Building Jeffersonville, 1N 47130 Indiana Political Risk Management Commission 311 W. Washington Street Suite 300 Indianapolis, IN 46204 Ms. Peggy Wilder Jeffersonville Clerk/Treasurer City-County Building Jeffersonville, IN 47130 PART I This is a formal confirmation and notification of the fight of Michael A. Gillenwater and James A. Gill~nwater, Sr., both residents of Clark County, Indiana, at the time of the below events and at the present time, to bring an action in tort, for continuing intentional defamatory misrepresentation and concealment, for intentional misrepresentations that placed them in a false light before the public, and for outrageous conduct, against Thomas R. Galligan, Ann Made Galligan ("the Galligans"), officials of the City of Jeffersonville and the City of Jeffersonville. This notification is based upon a series of events perpetrated and instituted by the Mayor and City Attorney since approximately March 2001 which has been continuous in nature through May 21, 2002.. On or about March 6, 2001 the Galligans began a continuous campaign and series cf acts of intentional misrepresentation, concealment and outrageous conduct ("the defamatory publicized campaign"), using their public offices and acting under color of state law against the name, public service and reputations of Michael A. Gillenwater ("Michael") and James Gillenwater, Sr. ("James"). With respect to the former, Michael was a practicing attorney at that time, and continues in that profession at the time of service. James was a tet'rninated former Jeffersonville Department head (Animal Shelter Director) in March, 2001, living as a private citizen at that time. The Galligans' statements, since March, 2001, misrepresented and imputed criminal conduct and misconduct in Michael's profession and occupation. They placed Michael in a false light before the public. The defamatory publicized campaign against Michael is believed to have commenced at that time. Michael's March 5, 2002 letter. Prior to commencement of the defamatory publicized campaign Michael issued a letter in early March 2001, to the Jeffersonville City Council taking issue with certain prior actions of Jeffersonville City Officials who had damaged James' personal credit by telling city Animal Shelter creditors that James was personally liable for Animal Shelter bills and that James had moved out of town. Michael identified that letter' as a Notice of Tort Claim. At an apparent 2 gathering of council members after the city received Michael's letter, the City Attorney told the Council, we're going to get him for ghost eml~loyment. Early "Spin"; Misrepresentation and Concealment~ In Mhrch 2001, in an effort to continue and perpetuate criminal ghost employment accusations against Michael, city officials began making other false misrepresentations and misleading statements to the press concerning the role of the Board of Public Works relative to payroll powers and payroll approvals again seeking to defame Michael and James and place them in a false light before the public. Specifically, in a May 22, 2001 article in the Louisville Courier Journal, the BPW was suggested to have insignificant powers concerning approval of payroll. This was "spin" and a misrepresentation attempted by city officials, in the continuous campaign of misrepresentation and defamation against Michael and James that Lever comported with established law, including statutes prescribing the authority of the BPW in the Indiana Code and case decisions like City of Indianapolis v. National City Bank of Indianapolis (App. Ct. Div. 2 1923) 148 N.E. 2d 675, These misrepresentations sought to further place James in a false light before the public and to defame him, while publicly attempting to conceal and hide the role of the Mayor, who consistently, and officially, approved all of Michael's payroll consistent with his prior directives and authorizations to James and consistent with his prior oral contract for Michael to perform services for the city in consideration of weekly payments (that the Mayor approved) from the Animal Shelter budgets of 1997-1999. False Defamatory Publications. As to all of the false defamatory misrepresentations made against James, the statemer/ts made were of a nature to place James in a false light before the public with the public and to malign and defame the name and reputation of James, and to suggest, by insinuation or innuendo that he had wrongfully and illegally submitted BPW payroll vouchers to pay to Michael for professional legal and fundraising services rendered, to the construction of the Josephine B. Ogle Animal Shelier facility in Jeffersonville, Clark County, Indiana for the 1997-1999 period. These statements were made when the Mayor had actual knowledge that the statements he and the City Attorney were making were intentional misrepresentations by them, made with actual malice, while concealing the Mayor's prior authorization. Since March 2001, and continuing into 2002, and after Michael's March 5, 2002 letter (attached), the Galligans commenced a pattern of making public statements, utilizing the news media (including the Jeffersonville Evening News and the Louisville Courier Journal) so as to maximize the publication of their intentional and false misrepresentations coffcerning Michael and James. They have reported and re-published these intentional misrepresentations, to other persons, since January 1, 2002. They have continued in their intentional misrepresentations, concealments and defamations during the 180 day time period preceding this notice. In alleging criminal conduct and misconduct against Michael, the Galligans, respectively, acted with actual malice, knowing their statements to be false or making them with reckless disregard for the troth. Despite all published statements, utilizing the newspapers, Michael and James were rarely contacted, in 2001 or 2002 to provide meaningful responses to the defamatory publicized campaign of city officials to make intentional defamatory published misrepresentations about them. Additionally during those times that the Jeffersonville Police Department, and the Clark County Prosecutor were involved in this epiSOde, once the defamatory publicized campaign began, neither Michael nor James were contacted by these agencies to provide statements, information or truthful information as to the misrepresentations of city officials. 4 Michael appeared, at his own request, before the Jeffersonville City Council and provided repetitive examples of city and county documentation in an attempt to clear his name and business reputation, and that of his father, in the face of the defamatory publicized campaign. This occurred on May 21, 2001. The Galligans hurried out of the meeting and would not answer questions about their actions or their conduct against Michael and James. The Mayor Authorized The Oral Contract In Advance. Michael was, indeed, paid for services to the city of Jeffersonville under prior instructions from the Mayor to James, when James was Animal Shelter Director and department head for the city. The payments were legal in all respects based upon a valid oral contract authorized by the Mayor, before Michael commenced his work in 1997. The Mayor instructed James to utilize the previously-appropriated Animal Shelter line item budget for l~art-time help to pay Michael sufficient sums to pay his own family health care insurance on a monthly basis. Following the Mayor's instructions, James prepared payroll vouchers that openly and visibly included the name of Michael in such mounts and sums as would compensate Michael in the approximate monthly sums authorized by Mayor Galligan in consideration for legal and fundraising services Michael performed for the shelter with the Mayor's full knowledge and consent. Michael's name could be plainly seen on each voucher. Thereafter the Mayor and BPW authorized payment on each one of the vouchers for over t~vo (2) years. The city accepted and retained all benefits of Michaels work. Clerk/Treasurer Processing; Municipal Checks and Balances. For each and every week that this payment process occurred, during the approximate times of 1997 through 1999, Animal Shelter payroll vouchers were (first) turned in to the Jeffersonville Clerk-Treasurer for verification and accuracy and (second) presented to the Jeffersonville Board of Public Works ("BPW") for approval. Mayor Galligan was the president of the BPW at all relevant times. Ann Made Galligan was attorney for the BPW at all relevant times. For approximately two (2) years of open, public recorded meetings, neither the Mayor nor the City Attorney made any objection to the Mayor's weekly approval of payroll payments to Michael from the previously-appropriated Animal Shelter budget. Michael was issued W-2 statements for all compensation managed through the BPW and the city Clerk/Treasurer office. All of Michael's payments were subjected to the Clerk/Treasurer's verification under law and all "checks and balances" of Indiana Municipal Law. The Galligans never once alleged impropriety regarding Michael's compensation until Michael issued the March 5, 2001 letter to protect his father. After that the campaign and intentional misrepresentations w~re fabricated (in 2001 for the 1997-99 time period) to damage Michael and James, while concealing the actual truth for other city official and the public. Subsequent Denials Do Not Negate City Records. It is false, defamatory and inherently not credible for the Mayor to have ever claimed lack of knowledge or authorization with regard to these payroll matters. It is uncertain when (and if) the Mayor ever told his wife/City Attorney or (a) the entire City Council in 2001/2002, or (b) the current Clerk/Treasurer of his prior authorizations and directives to James to submit weekly payroll vouchers for Michael from the Animal Shelter budget, based upon the valid oral agreement with Michael, before the defamatory publicized campaign commenced or continued under their mutual guidance. For motivations not comporting with truthfulness, reasonableness or honesty, the Galligans, when the defamatory publicized campaign began, sought to disavow that abundant series of Jeffersonville official records created at BPW meetings, authorizing payroll to Michael pursuant to ihe method prescribed by the Mayor to James. Instead, the Galligans concealed the Mayor's prior authorization and prior (valid) oral agreement with Michael. They reported James and Michel to Jeffersonville police and began using local newspapers and publishing defamatory misrepresentations about these two (2) men, imputing the commission of criminal activity, or public misconduct, to each of them and seeking to place both of them in a false light before the public with the local citizens. State Board of Accounts Finding Shortly after commencement of the defamatory publicized campaign the Indiana State Board of Accrunts, ("SBA") in late 2001, received the allegation from City Officials that Michael committed the crime of Ghost Employment or that he otherwise perforated no services to the City of Jeffersonville worthy of compensation. These statements, and defamatory intentional misrepresentations of this nature, were repeated to other persons and in the newspapers identified above. The Mayor's prior directions and authorization of the valid oral contract was concealed from the Board of Accounts. Nonetheless, on September 18, 2001, the Board of Accounts refuted the Galligans' assertions and made an official finding that Michael had, indeed, performed professional services for the City in consideration of the BPW payments previously made to him. Any pursuit of criminal charges of Michael, with any prosecutor, police or official agency, after the official SBA finding, is actionable on tort for intentional, misrepresentation, concealment, defamation, and seeking to place Michael in a false light before the public, particularly in view of the (a) Mayor's prior directions and authorizations to James and (b) the Mayor's (and Board of Public Works and Safety) consistent official public weekly approval of Michaels pa~ in 1977-1999, after the Clerk/Treasurer had performed his legal review and verification functions under Indiana Law. Special Prosecutor Finding. Nonetheless, and, as a part of their continuing defamatory publicized campaign, the Galligans persisted in seeking criminal prosecution against Michael and James after the SBA finding issued in 2001 and throughout 2002 until nearly the end of May 2002. They demanded that Clark County Prosecutor, Steven A. Stewart file criminal charges against them. Due to conflicts of interest, as he saw them, Stewart recused himself and the Clark Superior Court No. 3 appointed Steven Owen (Crawford County Prosecuting Attorney), as Special Prosecutor to investigate and make determinations with respect to the Galligans' charges. On or about May 27, 2002 Special Prosecutor Owen filed his official report to that court which stated the prosecutor's agreement with the SBA report. The prosecutor determined that no criminal charges were justified to be placed against Michael and James, grounded and based upon the Galligans' continuing allegations. Analysis by Law Enforcement Officials: No Criminal Conduct. In his own published comments with the Louisville Courier-Journal on May 20, 2002, Owen was quoted as stating that the Galligans' charges against the Gillenwaters were politically motivated. This is undeniably true. The Jeffersonville City public records, and particularly BPW records, support no other conclusion. (NOTE: The State Board of Accounts' Report was prepared by auditors, not law enforcement officials. When the Indiana State Police and Special Prosecutor Owen applied trained legal knowledge and expertise to the variety of claims raised by the Galligans~ the official report found no violation of any law, in spite of the auditors' reference to I.C. 36-4-8-12 & 13. From a legal standpoint, Prosecutor Owen found that the facts of the case [citing the years of approved vouchers, and the W-2s issued to Michael] did not fall within the violation.) Notwithstanding these specific findings by Special Prosecutor Owen, the Galligans persisted in making more misrepresentations and imputing misconduct to Michael and James -- again, using the above-named local newspapers for publication to a vast and unknown number of readers. Specifically, Ann Marie Galligan published that her next step was to s~eek intervention of the Indiana Attorney General against Michael individually or the Gillenwaters collectively. This has no viable foundation under Indiana law since the Attomey General's office may not supersede the decision of a local prosecutor. Nonetheless, these statements of defamatory intentional misrepresentations that were published by the City Attorney after Prosecutor Owen's decisions became public continued to malign Michael and impute criminal or illegal conduct to him in his profession and occupation. The City Attorney published additional comments that the attorney general involvement was necessary to protect local taxpayers. After the Special Prosecutor advised the Mayor of his findings and decision, the Mayor, again, engaged in intentional misrepresentations and defamatory statements alleging criminal conduct by Michael and alleging misconduct by him in his trade and profession. 9 The Galligans claimed, since the outset of these events in March 2001, to have investigated Michael and James. It was only after Michael's letter challenging city falsehoods made concerning his father, that they claimed misconduct by Michael and James. The retaliatory bad-faith na£ure of their actions since March 2001, continuing into 2002, are best illustrated in the Courier Journal comments of May 20, 2002. Misuse of Agencies: No Privilege; Waiver; Estoppel. The Galligans' demands upon Prosecutor Stewart were represented as based upon, what the Galligans claimed to be, their own internal investigation. The statements and criminal allegations made by the Galligans against the Gillenwaters do not enjoy any of the privileges of immunity under I. C. 34-13-3-3 that would normally be afforded local municilSal officials who conducted themselves reasonably, and in good faith, with respect to private legal duties owed to citizens. Beginning with the Jeffersonville Police Department, several official agencies were manipulated and misused by them to keep Michael and James enmeshed in investigations. The misuse of these agencies were based upon intentional, false and defamatory misrepresentations (and concealments) against Michael and James, to damage their reputations and place them in a false light before the public when the Mayor and City Attorney knew that Michael and James had committed no crimes in either the payroll or loan/gift matters discussed herein. The defamatory publicized campaign of the Mayor and City Attorney are not within any viable privilege existing under the common law of Indiana. Such privileges have been recognized only when a statement that is otherwise defamatory is uttered to a proper recipient for a proper or legal purpose and the utterance is in good faith. 10 Against the several pages of approvals of payroll by the Mayor at BPW meetings and against the background of the city's own deposit records, neither the Mayor's statements and allegations, nor the City Attorney, as described at all relevant times above, pertaining to payroll or the $100,000.00 loan/gift (see part III) meet the requirements to sustain a claim of immunity in the course of these continuous misrepresentations. The facts of openly approved payroll for Michael will not go away! The only explanation for the Mayor approving them, and the City Attorney not contesting them, for some two (2) years, is that both of these individuals acted consistent with the Mayor's prior approval of Michael's oral contract. Repetitive Pattern of Intentional Torts Continuing in 2002. The Galligans have unsuccessfully tried to deny the above knowledge Of the prior oral contact and the reams of city records of approval in 2001/2002, when they chose the path of concealment and intentional defamatory misrepresentations to try to damage Michael's name and reputation for his challenge of city officials treatment of his father in March 2001. Those decisions by city officials have been, ill-advised, illegal and malicious actions. This course of conduct is actionable under the law. For each time they sought criminal charges against Michael and James, while concealing material facts, in 2001 & 2002, they committed a ne~v series of torts (intentional misrepresentations, concealments, false light before the public, outrageous conduct) against these men. None of their actions were privileged or within defenses recognized by the la~v of Indiana. This Notice is timely filed, in consideration of the circumstances and timeframe, and is in compliance with the Indiana Tort Claims Act for many legal reasons including, but not limited 11 to, the specific reasons that have been established by Indiana case decisions and are highlighted in Part III. It was the Galligans and the city officials, themselves, who claimed they conducted the feigned investigation, just after Michael's 2001 letter. The first agency directed to investigate Michael and James thereafter was the Jeffersonville Police Department. Subsequent to those directives, for a time period nmning through ~onclusion of the special prosecutor's investigation in May 2002, each time Michael and James were in a position to earlier service Notice of this type, the Galligans and city officials made repetitive false intentional defamatory reports, misrepresenting and concealing the actual facts, to other agencies !ncluding, but not limited to, Clark County Prosecutor, Indiana State Police, Special Prosecutor Owen. Very recent news media articles, published after the Special Prosecutor's' final report was made known to the Galligans on or about May 17 or 20, 2002 suggest they will falsely contact another official agency in this continuous pattern, to wit: the Indiana Attorney General. By their actions and conduct the Galligans and city officials acting in concert with them have created an estoppel and whiver of any objections to this notice .to other agencies. The period between May 17, 2002 and the date this Notice is served upon city officials is quite literally, the first time period in nearly one (1) year wherein Michael and James have not been subject to investigation by some agency brought into these events by the Galligans false intentional statements, misrepresentations and concealments. 12 PART II · 0 Section A - $100,000.0 Loan/Gift Section B- Attachments SECTION A The Galligans, since March 2001, and continuing into 2002, additionally sought criminal prosecution, for theft by Michael, regarding a $100,000.00 loan/gift from Clark County government, which was received into the accounts of the City of Jeffersonville and expended by the City for its Animal Shelter facility. This intentional defamatory misrepresentation, about Michael was more unfounded and in more bad faith than the payroll allegations. These were further instances of outrageous, intentional defamatory conduct against Michael, ~seeking to place him in a false light before the public. The public records prove that Michael never had personal control over those monies other than to carry the county warrant (check) from county office to city offices (where city officials promptly deposited the warrant into a city account, see attachments). The particulars of the Galligans, conduct toward Michael and James became first known to them with specificity, in 2002, within the last 180 days. Michael and James were cleared of this charge, as well, by the Special Prosecutor on the date referenced on or about May 27, 2002. The $100,000.00 release of county account to city account was doubly authorized by both the county commissioner's office and the Clark Circuit Court. se._~e court order attached. No reasonable municipal official who acted with a scintilla of good faith would allege the transfer to be a crime, except in the case of intentional false defamatory misrepresentations against Michael and James. 13 SECTION B Attached are some of the media publications of the relevant documents that illustrate the facts referenced in this notice. Document/Attachment Michael's March 5, 2002 letter Five (5) samples of Media Articles Sample of BPW Minutes showing Original signature of payroll by Mayor Samples of Animal Shelter Payroll Vouchers Listing Michael's name as payee John Perkins' affidavit as to Mayor's knowledge State Board of Accounts finding Documents regarding $100,000 County/City Transfer, plus court order May 21 .Courier Journal article Special Proscecutor's official final report Item 1 2 3 4 5 6 7 8 9 14 LIABILITY The acts of concealment as to prior authorization of the oral contract with Michael and the intentional defamatory misrepresentations of the Mayor and City Attorney, in contradicting official payr611 records of the City of Jeffersonville that the Mayor, himself, established, with his own signature pen, the intentional misrepresentations of BPW authority and control ever payroll matters, all of the misrepresentations listed belo~v and/or by alleging theft of the $100,000.00 loardgif~ from Clark County from Clark County to the City, have been outrageous. These acts have maliciously violated the private duty owed to Michael and James. The trail of city (and court) documents expose the negative defamatory campaign as the stacking of concealment upon misrepresentation in a tortuous pattern from March 2001 to March 2002. No public duty was being served in perpetuating these intentional falgehoods and lies (summarized below), and continuing active concealment of material facts and truths, such as might attach a valid privilege or that would immunize the Galligans or the City from liability. Principles of basic fairness, honesty and good faith make these lost to the Galligans forever. The agencies/offices that were misused in this process (named above) were manipulated in bad faith to cause damage to Michael and James and to keep them as publicized targets of official- sounding inquiries so as to damage their names and reputations. No valid justification existed for the Mayor and City Attorney to publish additional false statement and repeated misrepresentations, including saying the Indiana Attorney General needed to investigate Michael and James, or the taxpayers needed to be protected from them, after the work of the Special Prosecutor was complete. A continuous and new instance within a pattern of tortuous conduct in 2001 and 2002 occurred each time the Galligans made 15 misrepresentations directed toward criminal charges or public investigations of Michael and The Galligans and the City are liable to Michael A. Gillenwater in the sum of $300,000.00.' They are separately liable to James Gillenwater, Sr. in the sum of $300,000.00. Persons who may be witnesses in this cause, or who may have knowledge of events pertinent to this claim include the following persons known to the plaintiffs at this time: Thomas R. Galligan, Ann Marie Galligan, Peggy Wilder, Clerk-Treasurer of the City of Jeffersonville, C. Richard spencer, former Clerk-Treasurer of the City of Jeffersonville, Honorable Steven M. Fleece, Honorable Daniel F. Donahue, David A. Lewis Clark County Commissioner, Honorable Stever~ Owen, Prosecuting Attorney of Crawford County (Special Prosecutor), Detective Scan Clemons of the Indiana State Police, Thomas J. Linley, Dug Begley, and John Reiter of the Evening .News newspaper, Ralph Guthrie, Gregory B. Hall, of the Courier Journal newspaper, M. Edward Meyer, Peggy Wilder, Raymond Parker, Jr., Honorable Martha Fontaine of the Indiana State Board of Accounts, all members of the Jeffersonville City Council that were in office during 1999, 2000, 2001 and 2002 through the conclusion of the Special Prosecuting Attorney's investigation, Jeffersonville police officials initially assigned to investigate Michael and James. 16 PART III ~=~.gal Authoritiesl A primary underlying purpose of the Indiana Tort Claims Act is to provide a political subdivision the opportunity to investigate the facts surrounding a claim so that it may determine its liability and prepare a defense. In the circumstances outlined in this Notice, the claimed or purported investigation of the alleged facts was actually begun by the Galligans in March 2001, at the outset of their campaign of false intent and defamatory misrepresentation to newspapers. They, as well as the City of Jeffersonville, were clearly notified as to all information and claimed facts concerning this incident so that they could be fully apprised of their own liability if they undertook steps involving misrepresentation and defamation, eitherper se orper quo& Verbal contracts (without a writing) between attorneys and cities have been recognized by the Indiana Supreme Court since 1916. City of Rochester v. Campbell (1916) 184 1ND. 421, 111 N. E. 2d 420. In Retter et. al. v. Retter (App. Cp 1942) 110 Ind. App. 659, 40 N.E. 2d 385. The Court of Appeals held that an unwritten contract is equally as binding as a written instrument when the acts and conduct of the parties, illustrate a contract relationship, see also Gibson-Lewis Corporation v. Northern Indiana Public Service Company (3d Dist. 1988) 524 N.E. 2d 1316, 1318.viewed in light of surrounding circumstances, evidences a clear intention of the parties Our courts have held, as recently as 1999, that where a government employee in the course of his duties acts in a manner inconsistent with honesty and veracity he may be estopped from asserting the Tort Claims Act as a bar to the claim, see Davidson v. Perron (1999) 716 N.E. 2d 29. (In Davidson a Mayor's deceitful conduct prevented the plaintiff in a defamatory cases from utilizing the normal tort claim notice period of 180 days from the incident as a defense). It has also been held by appellate level courts in Indiana that where the acts and conduct of the defendants or his agents have established that the purposes of the statute have been satisfied, those acts and conduct could constitute a waiver of notice or create an estoppel. Compliance with the Tort Claims Act has been found when the underlying purposes 17 (providing reasonable notice of acts and surrounding circumstances to allow investigation, determinations and preparation of a defense, etc.) of the Act have been met. As in the case described in this Notice, all of the actions, published statements, acts and surrounding circumstances were, at first, alleged and created by the Galligans themselves in the spring of 2001. Providing this Notice to them is merely a formality in that they became liable in tort, to Michael and James, each and every time they began making and publishing their intentional false statements of misrepresentation and defamation in March 2001. see Wade v. South Bend Transportation Corporation (1989) Wl 516281 (N.D, Ind.) In Porter v. Ft. Wayne Community Schools (Ind. App. 2001) 743 N.E. 2d 341 the Court of Appeals of Indiana held that the purpose of the Tort Claims Act notice requirement was to provide the political subdivision the opportunity to investigate the facts surrounding the accident so that it may determine its liability and prepare a defense. When deciding whether there has been substantial compliance the court reviews whether the notice was, in fact, sufficiently definite as to time, place the nature of the injury. At 343 the court stated "~t has long been the policy in Indiana to liberally apply the ITCA notice requirements to plaintiffs...we see no need to endorse a policy which renders the statute a trap for the unwary where its purpose has in fact been satisfied". A communication is defamatory per se if it imputes (1) criminal conduct; (2) loathsome disease; (3) misconduct in a person's trade, profession, office, or occupation, or; (4) sexual misconduct Rambo v. Co (Ind. Ct. App. 1992) 587 N.E. 2d 140. see also Henrichs v. .Pivamik (Ind. App: 1st Dist 1992) 588 N.E. 2d 537. Actions of a municipal Board of Public Works have final and conclusive effect based on incurrent Indiana Statutes (In effect in 2001 & 2002) and based upon established case law. City of Indianapolis v. National City Bank of Indianapolis (App. Ct. Div. 2 1923) 148 N.E. 2d 675. 18 SUMMARY OF INTENTIONAL DEFAMATORY MISREPRESENTATIONS BY CITY OFFICIALS DESIGNED TO DAMAGE PLAINTIFFS; DEMAND The following is a brief listing of some, but not all, of the intentional defamatory misrepresentations that are actionable in tort, that have been perpetrated against Michael and James as outlines above: 1) Misrepresentation that James was personally liable for city Animal Shelter bills. 2) Misrepresentation that James had moved out of town after his employment at the Shelter ceased. 3) Misrepresentation that the Mayor did not previously direct and authorize James to pay Michael in the precise manner that Michael was paid from 1997 - 1999. 4) Misrepresentation that the Mayor made a prior valid oral contract for Michael's services, directing James to pay him certain sums from line items of appropriated animal shelter budgets in al relevant years. 5) Misrepresentation, in light of BPW records and repeated approvals by the Mayor, that Michael was working for free. 6) Misrepresentation that Michael committed a crime of Ghost Employment and that James was a party to it. 7) Misrepresentation that Michael committed any other crime during the compensation period from the city and that James was a party to it. 8) Misrepresentations that James engaged in criminal conduct in view of the Mayor's prior authorizations to him. 19 9) Misrepresentation that Michael committed the crime of theft with respect to the $100,000 loan/gift fi:om the County Commissioners to the City/Animal Shelter project. 10) ' Misrepresentation concerning the functions of the Board of Public Works at all relevant times. 11) Misrepresentations that the Mayor and City Attorney did not know the Mayor and his Board of Public Works were weekly compensating Michael (as evidenced by the Mayor's signature on approval documents) for professional services with respect to the Animal Shelter project. 12) Misrepresentation that any state agency or local prosecutor needed to investigate BPW payments to Michael, in the face of all records authorizing 15ayment to him, after the SBA made a finding that Michael had performed services, thereby negating any suggestion of ghost employment, a crime. 13) Misrepresentation that the Indiana Attorney General needed to investigate Michael and James after a court-appointed special prosecuting attorney established no criminal charges should be placed against either Michael or James. 14) Misrepresentation that "the taxpayers" needed to have yet another investigation, after the SBA and the special prosecutor agreed (at two different times) that Michael had, indeed, performed work that benefited the city. 15) Misrepresentation as to the conclusiveness and finality as to official actions by the Board of Publie Works at all relevant times. 16) Misrepresentations, concerning Michael's professional services to the city, that were made and intended to damage him in his occupation and profession. 20 Misrepresentations, throughout the entire time period outlined above, perpetrated by Mayor Thomas R. Galligan which intentionally withheld truthful and accurate information of his prior directions and approvals to the SBA. Further intentional defamatory misrepresentations were made by the Mayor, alleging criminal conduct against Michael, when the Mayor was informed by the special prosecuting attorney that no criminal charges would be filed. CONCLUSION Prior to service of this Notice, the Gillenwaters had been consistently made the targets and object of intentional statements of misrepresentation and defamation, first published in local newspapers, published and repeated to other people and falsely reported (in the face of voluminous Jeffersonville records and active concealment of material facts to the contrary) to police, prosecutors and the Indiana State Board of Accounts. No valid justification exists for intentional defamatory course of misrepresentations and concealments. The true documented facts were already clearly established in Jeffersonville city records by (a) the Clerk-Treasurer's verification of each and every voucher submitted to BPW, (b) by the Mayor's documentary trail of original signatures on all requests for payroll vouchers to be approved, (c) by the deduction of taxes on checks issued to Michael A. Gillenwater and by the issuance of W-2 statements for (d) all years of compensation), and by (e) all city and county records establishing a government-to-government transfer of the $100,000.00. The Mayor's actual knowledge and his actions approving all payroll at issue, under an oral contract be authorized was concealed by him from the Jeffersonville Police Department, the SBA, Indiana State Police, Prosecutor Stewart, and Special Prosecutor Owen. It is clear he 21 elected a retaliatory course of concealment and intentional misrepresentation of the truth in a defamatory manner, after Michael challenged city officials concerning treatment of his father in the May 5, 2001 letter. The c~mtents of this Notice and the attachments utilized hereon represent but a portion of the evidentiary information Michael and James have to support their claim. The city administration is Notified that in any litigation that may hereinafter have to be filed pursuant to this Notice, the Mayor and city attorney, individually, will be named as party defendants. The city attorney shall be disqualified from representing the city in this circumstance. Thus, the city administration and City Council Notified of the necessity to forward this Notice, plus all attachments, to its insurance or liability carrier so that independent counsel may contact the plaintiff's representative. James Gillenwater, Sr. and Michael A. Gillenwater demand settlement of $300,000 individually, or $500,000 aggregate, against the named city offic~ cit for the illegal actions taken against them, and perpetrated agai~ t the erei baniel E. Mo Pla: 411 Watt Street Jeffersonville, IN ~130 (812) 288-4442 Date SerVed: June ~ ., 2002 of Jeffersonville ~al ~setout. 22 MARCH 5, 2001 LETTER (NOTICE OF TORT CLAIM) FROM MICHAEL GILLENWATER TO CITY COUNCIL PRESIDENT MERKLEY RE: OUTSTANDING ANIMAL SHELTER CLAIMS CAUSING PROBLEMS FOR FATHER Michael A. Gillenwater A~OIhNEY AT LAW 411 Watt Street JEFFERSONVILLE, INDIANA 47130 (812) 288-4442 Fax Number (812) 2884451 March 5, 2001 Leslie D. Merkley, President Jeffersonville C°mmon Council 538 E. Court Avenue Jeffersonville, IN 47130 Hand Delivered RE: Outstanding claims for Jeffersonville Animal Shelter as abasls for aNotlce of Tort Claim Dear Mr. Merkley: This letter comes as a follow-up to our phone conference of February 28, 2001 regarding an outstanding credit card debt from the Jeffersonville Animal Shelter, which ~s be'rig billed to my father, James H. Gillenwater. To the extent it is necessary, please consider this a notice of tort claim. As I explained earlier, during the tenure of my father as the Animal Shelter Director, he applied for and received a credit card on behalf of the Animal Shelter by following the directions outlined to him by city employees, including employees of the Clerk/Treasurer's office under the administration of the previous Clerk/Treasurer, Mr. Spencer. The credit card was obtained from Bank One, which' later sold it to First USA. My father apparently personally guaranteed payment for that account. As you know, my father's employment with the city ceased at tile end of May last year. Before that time a claim for the credit card bill was ~ubmitted to ihe ClerkJTreasurer's office for presentation tothe council. Unlike other similar claims that had been presented to and approved by the council earlier (using the identical procedure), that claim was never presented to the City Council for payment. After ,mon!hs of having claims approved in this manner, the Clerk/Treasurer apparently devetopea an objection to the procedure my father followed to obtain the credit card. Likewise, the Clerk/Treasurer apparently decided that the council should be not presented with the claim. It is uncertain whether other city credit card bills from accounts opened in the same manner as the Animal Shelter account for other departments ha~,e also been withheld from the Leslie D. Merkley March 5, 2001 Page 2 council, or wheth6r this was an isolated case. Incidentally, no concern has ever been voiced about the actual charges on the credit card, so this will not be addressed in this notice. Approximately two weeks ago, my father received a call from a Viking Collection Service, Inc., a collection agency. The representative indicated the Animal Shelter credit card bill in the amount of $742.65 had not been paid and that he had attempted to locate my father to collect the account. He stated that the Clerk/Treasurer's office and the Animal Shelter director had indicated they did not know the whereabouts of my father, stating they thought he had moved out of town. That information was false. To even pretend that they believed my father had moved out of town is ludicrous. They had no obligation to provide any information to the collection agent, but chose to provide false and/or misleading information. This subjects them to a different legal standard. The unpaid Animal Shelter credit card debt has become a blemish on my father's credit history. Unfortunately it appears this seems to have been the desire and intent o,f, certain city employees and/or office holders to slander my father's credit reputation. No other reasonable explanation exists why anyone would intentionally misrepresent to the collection agent nay father's whereabouts while in possession of accurate information. You have advised me that the City Council was not ever presented with this outstanding claim. I am, therefore, requesting that the Council approve a claim to Viking Collection Service, Inc. to pay the outstanding credit card debt for the Animal Shelter (A copy of the collection letter is enclosed). The Clerk/Treasurer should still have the claim records, if those records were not discarded, lost or destroyed. I am also requesting that the City Council prepare a letter to Bank One, and to the collection agency, explaining the following: ' at the credit card purchases on the Animal Shelter ac..count, w,e[e, a) Tpthe Animal Shelter and tile obhgat~on to pay the credit earn oeot for the benefit o was the City's; b) That the City has continuously had my father's address and phone number, which has not changed since the termination of his employment with the City; and c) That the delinquent credit card bill was never presented to the City Council for payment, and, therefore, the City Council was unaware of the claim until contacted by me. Leslie D. Merkley March 5, 2001 Page 3 For reasons not completely explained m this letter it seems unreasonable to believe that this · and no. However, if this matter can be resolved quickly, under the is Just an innocent m~sunderst o ...... ~ ....an,, le'~al action against the city. If it circumstances outlined above, I will adwse my cnem uo ~ut~,, j ~ cannot, I will advise him to: 1) pay the claim immediately; 2) seek restitution from the City of Jeffersonville on several legal theories; and 3) proceed against the city and personally against the department heads, employees and any office holders for compensatory and punitive damages. My father's damages are indeterminate at this time, but are assumed to be less than the statutory limits for which a city can be held liable. I appreciate your attention in this matter and look forward to hearing from you. I urge you to contact me if you have any questions, comments, or concerns regarding it. Sincerely, Michael A. Gillenwater Counsel for the claimant, James Gillenwater MAG:smd XC: Mayor of jefferionville City Clerk/Treasurer Other City Council members City Animal Shelter Director Old shelter books will be .audited By JON REFFER City Editor The Indiana Sta(e Board of Accounts is conducting an aedit into the payroll records of the Josephine B. Ogle · : Animal Shelter, and the results we expected to he :leased to the public next week. .. '2 A spokesman from the Officials from the Indiana State Board o! Accounts ate checking into the payroll records of the Jeffersonville Animal shelter when Jim Glllenwater, above, managed it. Bo~d of Accounu refused to. comment on the investigation but said the hoard will release its findings once the audit is complete. By state law, inves- tigators are not allowed to comment on the findings un- til the audit is complete According to .leffersonvltle City officials, the investiga- tion has targeted Mike Gillenwatcr, thc Charlestown City attorney whose father Jim, ran the animal shelter fore resigning last year. Gillenwater was to have done legal work and'fundrals-. ing for the shelter durlag the 1998-99 calendar year, ac- cording to Jeff Clerk-Treasur- er Peggy Wilden The amount in question amounts to approximately $7,800 during d~at dine. according to Wilder. ' d /W'flder said that her office, during that time, could fin only payroll documentation that the money had been paid o G enwater but no evidence ~hat he had worked the time. , · · G llcnwater s job was to have paid him $7.50 per how f6r 20 hours a week, according to ",'gilder. Jeff City Attorney Anne Marie Galligan confirmed that Gillenwater's paymig records were in que.silon. ?We have payroll records bet no time sheets;'. Gall gan said. Galfigan notified Clark County Prosecutor Steve Stew- art about ihe findings earlier dfis week, and the decision was then made to contact thq State Board of Accounts. :Jim Gillenwater resigned in May 2{200 amid questions that 3 $I00.0~0 check presented to the shelte[ last year from the Clark County Commissioners was a gift, as · mayor Tom Galligan then clalmed, or a loan as Gillen- water and then commissioners Ralph Guthrle, Ed Meyer a~d current co~ssioner Detmy Hill said.' '" SEE AUDIT, PAGE A7 A DIT CONI~IUED FROM PAd~ A1 The State Board of Acc66nts then investigated the $100,000 and de- cinred the dona on a gift. The el{let Gillenwatcr chdmed that politics;~tld a feud between Guthrie and Tom Galligan were behind'~e fiap into thc money. Mike Gifienwater, in a phone intel'- dit and that he had done nothing "That's fine[' Gillenwater said of the investigation. "We'll see what they find. It's all a matter of public record:' Gillenwater, in mm, claims that his father h~n't yet been properly reim- bursed for some work he paid for out of his own pocket for the shelter, and that they both were heavily involved in the raising of hundreds of thou- sands of dolhm:s to help get the shelter built last year. The claim for that work, Gillenwa- ter said, was rejected by the Jeflkr- sonville City Councih City Council member president Les Mcrkley, who Wilder said was alerted of the investi- gation, refused, comment on the hi- vestigation. City gouncil attorney Dawn Eiston also wouldn't comment on the investigation but said the council members may make a state- mcllt on a later date. Gillenwaler said he believes "politi- cal hay" is what is at thc root of thc investigation, and that he hadn't heard fi'om Jeff City officials about the payroll records. "If you're going to investigate someone it seems as if you'd at least notify them[' he said. "l question whether this is a legitimate invesilga- tion or ,'m attempt to disparage me or m7 hther or bolh:' ~'-3ournah Documen? Display Record 6 of 6 ]*he Courier-3ournal (Louisville~ http://in fowebg.newsba nk.com/iw-.,,YzNToxOj E iOJE2NS4xHzguMTISLjExOQ March 24, 2001 3eff shelter's payroll under police review $],5~83:[,59 pal to director's son raises questions Author: GREGORY A. HALL, The Courier-3ournal; STAFF Section: NEWS Page: lB Index Terms: EMPLOYMENT ECONOMY SALARY WAGE Estimated printed pages: 3 Article Text: ]effersonville police are investigating payroll records from the city animal shelter after a review by two city officials raised questions about money paid to attorney Hike Gillenwater, whose father, ]im, is a former Shelter director. Nike Gillenwater received .$15,831.59 - before withilolding - between 1997-99, according to wage and tax statements obtained from ti~e city. His fatller was head of tt~e shelter during that time. However, there are no records of any time cards for Hike Gillenwater, according to ]effersonville Clerk-Treasurer Peggy Wilder. · ' If he was doing legal work, which one would assume he was, there was no time card," she said. Every part-time employee for the city is supposed to fill out a time card, wilder said, which is kept by individual department heads. · ' We do have time cards for the other animal shelter employees," Wilder said. Nike Gillenwater said yesterday that he hadn't been contacted about the investigation and thus could not comment on it. An attempt to reach his father was unsuccessful. Wilder said she and City Attorney Anne Marie Galligan met with Clark County Prosecutor Steve. Stewart earlier this week ' 'in regards to an investigation for ghost employment." Stewart declined comment. Chariie Thompson, the chief of detectives for 3effersonville police, said he began an investigation into the animal shelter payroll on Wednesday. 8/24/0~ 1:11 PM ~ e[-3ournah Document Display http;//infoweb9.newsbank.com/iw-...YzNToxOj E-tOjE2NS4xHzguHTISLJ ExOQ · 'There's several different things we're looking at concerning the animal shelter and their finances," Thompson said. ' '. · · It's going to take a matter of, I'm sure, weeks. We want to be accurate, thorough." The matter also has been turned over to the State Board of Accounts for an audit, Wilder and Galligan said. · 'There was no (itemized) documentation for legal work," WiIder said, ' '. · · so it throws up an obvious question as to what did he do for the shelter." The only documentation, according to Wilder, are the payroll requests turned in by Jim Gillenwater and approved by the city's Board of Public Works and Safety. The requests for 1998 and 1999 list the number of hours Mike Gillenwater worked for the shelter and show a rate of $7.50 an hour. The requests for 1997 still haven't been reviewed because Wilder said she was unaware until yesterday that Gillenwater had received compensation then. City officials said the money came from the animal shelter's budget for part-time employees. The payroll requests were signed by 3ira Gillenwater and then-Clerk-Treasurer Dick Spencer, who preceded Wilder in the job. Mayor Tom Galligan, who is a member of the public works board, said yesterday that he wasn't aware that Mike Gillenwater was on the city payroll, even though the mayor voted on most of the payroll claims. Gailigan said the city has 240 employees, and the public works board can't review every name on every department's payroll request. · 'It's hard for us to go through there on Monday morning,", he said. Anne Marie Galligan, the mayor's wife, said the public works board members' responsibility is to make sure that the department head and the clerk-treasurer have verified the salary requests. Gailigan said the only time Mike Gillenwater was authorized to represent the city was before the Ogle Foundation, which gave $200,000 for the building of the new animal shelter. ' 'He went to the Ogle Foundation with his dad pro bono - free - just to get the grant," Gailigan said. ' 'When that was over, I thought his duration was over." Mike Gillenwater's work for the animal shelter was an issue last year when the then-Clark County commissioners sought repayment of a $100,000 loan to the city. Mike Gillenwater represented the city at the comm~ss'oners' meeting where the loan was obtained. Both Galligans said then, and again yesterday, that neither Mike nor Jim Gillenwater had the authority to obtain a loan for the city. They also said then that Mike Gillenwater had no authority to represent the city. Shortly thereafter, Jim Gillenwater left his job as animal shelter director. There were conflicting reports as to wheti~er he was fired or resigned. WILDER SAID Mike Gillenwater's employment by, the city came to her attention when he sent a March 5 letter on his father's behalf asking the city to pay a $742.65 credit card debt being billed to 3ira Gillenwater. According to Mike Gillenwater's letter to Council President Les Merkiey, in which the threat of a lawsuit is made, his father obtained the credit card on behalf of the animal shelter. 8/24/01 1:~1 PM sf-.lournah Document Display http://infoweb9,newsbank.com/iw-...YzNToxOjEIOjE2NS4x~zguHTI5LjExOQ im Gillenwater filed a claim last year for $495.94 along with the credit card statement. Milder declined then to present the claim to the City Council because the proper documentation of :he individual expenses on the bill and the previous balance of $231,65 could not be verified, she ;aid. · '! have a responsibility to make sure that all services received are validated with a receipt," she said. Mike Gillenwater said ~/esterday that his father didn't know the claim hadn't been approved and paid until hearing from a debt collector about 90 days ago. HE SAID he wants the city to issue a letter that would allow his father's credit record to be restored to its standing before the debt. Wilder said that when she received the letter, she discussed it with her employees, one of whom recalled that Mike Gillenwater had been on the payroll of the animal shelter. That led Wilder to check the payroll records for 1998 and 1999. Wilder said she gave that information to Anne Marie Galligan. Copyright 2001 The Courier-Journal Record Number: 2001032611460147 ~"/9.E~F~4' '~ ' ' '" 8/24/0~. 1:11 PH ~ Gillenwater to press case for fees from shelter work Attorney will address Jells City Council By GREGORY A. HALL The Courier-Journal Attorney M ke G lenwater said yesterday he will make h s case directly to the Jeffersonvgle C y Count Monday night regarding allega- ohs hat he was improperly on the city payroll for work he did on the new an ma shelter. "I'm not running from this thing," Gillen- water said yesterday. Jeffersonv e po ce and the State Board of Accounts are rives igaring $15 000 in payroll checks ha G enwa er received for part-time work on the new Jeffersonville animal she ter between 1997 and 1999. when his father, Gillenwater Sr.. was the shelter's d rec or AIthou h Gillenwater was pai~ as an hourly . . employee the city doesn't have time cards or him -- I had as it does for all other an[- done ma shelter employees, cording to city officials.'. :an~hing Nor was there, a contract, wrong I they said. wouldn't The only representation of Gillenwater's hours are be going on city payroll requests to signed by his father that show Mike Gglenwater them." working a set number of hours at $7.50 an hour. Mike Gitlenwater, City officials have said on addressing Gglenwater had no author, city officials it to work as a city em- p~'oyee and that any work hat was done was sup- posed to be wthout charge to the city. G enwa er said he did lc al work and raised fu rids and that all the payroll c~ims were approved by he ci y Board of Public Works and Safety. of which Mayor Tom Galligan is a member. Gillenwater will be allowed to speak, Council president Les Merkley said yesterday. Merkle sa d he received a telephone call from G ~'enwater .,T,u_esday requesting to' be placed on the council s upcoming agenda. , "We have a duty to honor his request," Merkley said. But he said he doesn't know wh..at could come of G lenwater's presentation, since ertl three of the seven council members were n o~- fcc when the payments were made and the council is ndt involved in the nvestigation.. 'Tm not r'~ally sure t3ow much this involves the council." Merkley smd. .~GiSenwater said he is speaking to the council See GILLENWATER Page 5, col, 4, this section Gillenwater to state case on payroll accusations Continued from Page B 1 because he is innocent. "If I had done anythin,g, wrong 1 wouldn't be going to them,' l~e said. Gillenwater said his case and his documents aren't being represented adequately tn the media, so he s g - lng o the council to "pres, ent the evidence they're not hearing. Those documents show corre- spondence to and from him that also went to Galligan and other city offi- cials. Gillenwater said he will ask the council to hold accountable eye.- one involved including Galligan, who votes on payroll claims in pub- ' lie works board meetings. C ~ Attorney Anne Marie Galli- gan ~ald yesterday that the public works board only verifies that the payroll claim has been properly sub- mitted b he department head and revlewe~ by the clerk-treasurer. Board members do not have to ver- ify tho other supporting details, she rney Mike Gillenwater speaks to the Jeffersonvirle City Council about his work on b~half el the animal shelter during last night's meeting, Mayor Galligan and city attorney Anne Marie Gailigan [eft before Gillenwater's speech, saying that it was an inappropriate forum for him to speak. ¢ ° goes before ouncd ocal lawyer pleads bis before Jeft leaders, but Wot, city attorney won't of it and leave illeetilltj GILLENSVATER MINUTES OF BOARD OF PUBLIC WORKS (BI'W) APPROVING PAYROLL REQUESTS MINUTES OF THE BOARD OF PUBLIC WORKS AND SAFETY OF THE CITY OF JEFFERSONVILLE, INDIANA MONDAY, JANUARY 1 I, 1994 Mayor Galligan called the meeting to order at 9:30 a.m., and on call of the roll those members present were: City Engineer Bob Miller, and Sewage Office Manager Bob Goldman. Also present were: Building Commissioner Larry Decker, Police Chief Mike Pavey, Wastewater Treatment Assistant Director Traylor, Parks Superintendent Rick Elliott, Vehicle Maintenance Foreman Mike Ewton, Street Commissioner Bobby Ervin, Animal Shelter Asst. Manager Rick Broy, City Attorney Galligan, and Clerk Lynne Kempf. Sewage Office Manager Goldman made the motion to approve the minutes of 12-21-98 and 1-4-99 as presented, seconded by City Engineer Miller and carded unanimously. City Engineer Miller made the motion to approve the payroll as presented, seconded by Sewage Office Manager Goldman and carried unanimously. Sewage Office Manager Goldman made the motion to approve the claims as presented, seconded by C. ity Engineer Miller and carded unanimously. 1999 HOLIDAYS Manager Goldman made the motion to approve the 1999 Holiday Schedule as presented, s~conded by Engineer Miller and carried unanimously. ETHICS DISCLOSURE City Attorney Galligan distributed the Ethics Disclosure forms to the department heads and asked that they return completed forms to her before Feb. 1, 1999. EXTERIOR LIGHTING Wastewater Treatment Plant Asst. Director Traylor asked the Board to approve having some lighting at the plant looked at and repaired by Metzger Electric. He said it will be paid by time and material. Mayor Galligan recommended a $6,000.00 cap on the repairs.' HIGH MEADOW SUBDIVISION. Mayor Galligan inquired as to how many tap-ins have been paid for and inspected in High Meadow Subdivision. The people in Utica who were on sewers and were involved in the flood are being moved to the subdivision. The agTeement will allow those on the existing sewer who have to mov'~ to transfer their tap to their house without paying another tap-in fee. Mayor Galligan voiced concerns about the items involving the Lif~ Station. Steve Kempf, the builder, told Mayor Galligan that the items in question are Realtor Charlie Relserts portion of the project. There being no further business to come before the Board of Public Works and Safety, City Engineer Miller made the:motion to adjourn at 9:50 a.m., seconded by SeWage Office Manager Goldman and carried unanimously. MAYO~ ATTEST: MINUTES OF THE BOARD OF PUBLIC WORKS AND SAFETY OF THE CITY OF JEFFERSONVILLE, INDIANA MONDAY, JANUARY 19, 1999 Mayor Galligan called the meeting to order at 9:30 a.m., and on call of the roll those members present were: City Engineer Bob Miller, and Sewage Office Manager Bob Goldman. Also present were: Building Commissioner Larry Decker, Police Chief Mike Pavey, Planning Director Jana Ecker, Asst. Parks Director Don Poole, Safety Director John Palmer, Wastewater Treatment Assistant Director Traylor, Parks SuPerintendent Rick Elliott, Vehicle Maintenance Foreman Mike Ewton, Street Commissioner Bobby Ervin, Animal Shelter Asst. Manager Rick Broy, and Clerk Lynne Kempf. Sewage Office Manager Goldman made the motion to approve the minutes of 1-11-99 and as presented, seconded by City Engineer Miller and carded unanimously. 713 E. CHESTNUT. Mayor Galligan asked Police Chief Pavey to check out the parking at this address for a resident only parking sign. _ENGINEERING SERVICE-INSTRUMENTATION AND CONTRO~LL Wastewater Treatment Plant Asst. Director Traylor said that the systems with the electronic controls and alan'ns at the treatmeut plant are not compatible with each other and interfere with each other which causes false alarms. He asked the Board for permission to have a consultant on instrumentation and controls look at the system and give a plan with pfioritization on how to solve this problem and also give a ball park figure on what each phase would cost. Director Traylor received a proposal from TEV Systems, Inc. for $2,000.00. City Engineer Miller made the motion to approve the proposal fi'om TEV Systems for $2,000.00 to look at the problem and give a plan, seconded by Manager Goldman and carded unanimously. R.R. CROSSING IMPROVEMENT-UTICA SELLERSBURG ROAD~ City Attorney Galligan is to write a letter to CSX Railroad on the needed repairs. City Engineer Miller made the motion to approve a letter stating that 30 days will be given to do the necessary repairs to the railroad crossing at Utica-Sellersburg Road, seconded by Manager Goldman and carded unanimously. HIGH MEADOW SUBDIVISIO Mayor Galligan reiterated that if someone lives in Utica and has an existing tap and are moving to High- Meadow Subdivision, they can transfer their tap. If they aren't already on the sewer they have to pay ttxe tap-in fee. ALYN COURT '"' Builder Roger Schmidt requested the Board to approve connecting Lansburg Cove II to be named Alyn Court to Jeff sewers. Manager Goldman made the motion to approve sewer connection of Lansburg Cove II to Jeff sewers, seconded by Engineer Miller and carried unanimously. ? FAIRVIEW AND BURNSIDE~ Nellie Knowland asked that someone look at the corner of Fairview and Burnside that is caving in. _ARTIE'S USED CAR~. Planning and Development Director Ecker said that she checked out a complaint on the nsed car lot and said the problem is still there. She sent them a letter stating that this problem was to be taken care of by January 13, 1999 and it hasn't been. Mayor Galligan instructed her to cite them into the Board of Public Works. There being no further business to come before the Board of PubSc Works and Safety, City Engineer Miller made the motion to adjourn at 9:50 a.m., seconded by Sewage Office Manager Goldman and carried unanimously. MAYO/R/// ATTEST: CLERK AND TRE~f3UItERc'~ ' MINUTES OF THE BOARD OF PUBLIC WORKS AND SAFETY OF THE CITY OF JEFFERSONVILLE, INDIANA MONDAY, FEBRUARY 1, 1999 Mayor Galligan called the meeting to order at 9:45 a.m., and on call of the roll those members present were: City Engineer Bob Miller, and Sewage Office Manager Bob Goldman. Also present were: Building Commissioner Larry Decker, Police Chief Mike Pavey, Planning Director Jana Ecker, Safety Director John Palmer, Wastewater Treatment Director Traylor, Vehicle Maintenance Foreman Mike Ewton, Street Commissioner Bobby Ervin, Fire Chief Mike Smith, Animal Shelter Asst. Manager Rick Broy, City Attorney Anne Marie Gallig.a_)~,and Clerk Lynne Kempf. Sewage Office Manager Goldman made the motion to approve the minutes of 1-25-99 as presented, seconded by City Engineer Miller and carded unanimously. City Engineer Miller made the motion to approve the payroll as presented, seconded by Sewage Office Manager Goldman and carded unanimously. SPRING STREET BID OPENING Jorge Lanz of Jacobi, Toombs, and Lanz said that no bids were received on the Spring Street job. He recommended that it be advertised again and re~bid. RE-NAMING STREETS AT CENSUS BUREAU Safety Director John Paln~er presented to the Board, a list of street names to be changed in order for emergency response personnel and the general public to better locate buildings and offices in the government installation. City Engineer Miller made the motion to approve the name 'changes, seconded by Manager Goldman and carded unanimously. HANDICAP PARKING Mayor Galligan asked Police Chief Pavey to check out 1026 E. Maple Street for a handicap parking permit. Carolyn Tate is requesting it. Chief Pavey will report back to the Board next week. NOV'S Wastewater Treatment Plant Director Traylor told the Board that Wyandot had an oil and grease violation on'NovemBer 2, 1998. After some discussion, City Engineer Miller made the motion to fine Wyandot $1,500.00 for this violation, but in the future the fine will be more, seconded by Manager Goldman and carded unanimously. Director Traylor said that Wyandot Inc. violated the Industrial Discharge Permit by not submitting the required reports on metals tests for 1998. Wyandot Inc. is required to submit in writing the reason the reports were not submitted. Sewage Office Manager Goldman made the motion to fine Wyandot Inc. $1,000.00, seconded by City Engineer Miller and carried unanimously. Director Traylor reported that Wyandot reported a PH of 11.9 on December 3, and a PH of 11.6 on December 29, 1998. This exceeds Wyandot's permit limit of 11.0. Manager Goldman made the motion to fine Wyandot $1,000.00, with future fines to be escalated, seconded by Engineer Miller and carried unanimously. ~ _pQ CORPORATION Director Traylor reported to the Board that PQ Corp. failed to provide self-monitoring reports in 1998 on metals tests as required. PQ Corp. is required to submit in writing a report stating the reason these reports were not provided. They are also required to submit the self-monltoring reports on metals test for the calendar year 1998 by February 28, 1999. Manager Goldman made the motion to fine PQ Corp. $1,000.00 for the violation, seconded by Engineer Miller and carded unanimously. CREEKSTONE RIDGE SUBDIVISION City Attorney Galligan presented to the Board for approval an agreement between Developers Lander and Miller and the City of Jeff. Lander and Miller are requesting approval of sewer connection for Creekstone Ridge Subdivision. Lander and Miller are to pay in addition to their normal tap-in fee the amount of $27,800.00 or $200.00 per house. In addition, Lander and Miller are donating the land on which the City's lift station is to be constructed. Manager Goldman made the motion to approve the agreement between the City and Developer's Lander and Miller, seconded by Engineer Miller and carded unanimously. BITUMINOUS BIDS ASPHALT SUPPLY- $17.25 per ton for Type B, Surface Mix. LITER'S QUARRY- Crushed stone #1,2,53,73 #8,9,11,12 Rip Rap Slate Delivery $4.75 per ton $5.00 per ton $3.50 per ton $1.80 per ton SELLERSBURG STONE- Type B, Surface Mix Cold patch Crushed stone #2,5 #8,9, l 1,12 #53, 73 Rip rap Slate Shot Rock $18.00 per ton $56.00 per ton $ 5.50 per ton $ 6.00 per ton $ 5.00 per ton $ 3.50 per ton $ 3.00 per ton GOHMANN ASPHALT-Applied prices, guaranteed 1 year. Primer $ 1.75 gallon Type B Surface Mix $ 25.00 per ton JACKSON JEN2qlNGS FARM BUREAU- Gasoline 87 Octane,base price Tax 89 Octane 92 Octane Diesel fuel 43.8 cents per gallon 15.8 cents per gallon 48.6 cents per gallon 51.2 cents per gallon 43.4 cents per gallon, .16 state tax MAKOWSKY OIL- Gasolinc 87 Octane 89 Octane 92 Octane Diesel Method #3, emergency fuel 45.4 cents per gallon 48.39 cents per gallon 52.75 cents per gallon 45.1 cents per gallon 50.00 delivery Manager Goldman made the motion to take the bids under advisement to be awarded at the next Board of Public Works meeting, seconded by Engineer Miller and carded unanimously. .TAP-IN City Engineer Miller said that Nathan Samuels of 2400 Hwy. 62 is requesting a tap-in to be financed over five years. City Engineer Miller made the motion to approve the tap-in, seconded by Manager,Goldma9 and carried unanimously. CAR DAMAGE City Engineer Miller said he received a call from Mrs. Junghaene about ball joint damage that was done to her car when she drove on Market Street near Exit 0 where work has been done by the City. City Attorney Galligan said that Mrs. Junghaene needs to contact her. RIGHT OF WAY SIGN City Engineer Miller received a call concerning the need for a right of way sign or a three-way stop at Middle Road and North Port. Manager Goldman made the motion to approve a three-way stop at Middle Road and North Port, seconded by Engineer Miller and carried unanimously. There being no further business to come before the Board of Public Works and Safety, City Engineer Miller made the motion to adjourn at 10:30 a.m., seconded by Sewage Office Manager Goldman and carried unanimously. MAYOR ~ ATTEST: CLERK AND TREAI~.JRER MINUTES OF THE BOARD OF PUBLIC WORKS AND SAFETY OF THE CITY OF JEFFERSONVILLE, INDIANA MONDAY, MAY 3, 1999 Mayor Oalligan called the meeting to order at 9:30 a.m., and on call of the roll those members present were: City Engineer Bob Miller, and Sewage Office Manager Bob Goldman. Also present were: Fire Chief Mike Smith, Street Commissioner Bobby Ervin, BuildLng Commissioner Larry Decker, Wastewater Treatment Plant Directb~: Trayl0r, Parks Superintendent Rick Elliott, Personnel Director Ellis, Animal Control Officer Henderson, Planning and Development Director Jana Ecker, City Attorney Galligan, and Clerk Lyrme Kempf. M~nager Goldman made the motion to approve the minutes of 4-26-99 as pre~ented, seconded by City Engineer Miller and carried unanimously. City Engineer Miller made the motion to approve the payroll as presented, seconded by Manager Goldman and carded unanimously. 300 TENTH STREET Planning and Development Director Ecker informed the Board that she sent a letter to Carl Koehler telling him to clean up his property at 300 Tenth Street. OVERLOOK WEDDING Lajina Evans of 1506 Brigman Avenue asked the Board's permission to hold her wedding ceremo~y at the Overlook on June 12, 1999 at 2:00 p.m. Mayor Galligan said ttiere would be no problem with this. Planning and Development Director Ecker will send her a letter of approval. RESIDENT PARKING Lynn Whit~on requested a resident only parking sign at 301 Pearl Street. Manager Goldman made the motion to approve the resident only parking sign, seconded by Engineer Miller and carded unanimously. SEWER BACKUP Dawn O'Neil appeared before the Board because of sewage backup at her home on Utica Pike. Wastewater Treatment Director Traylor has taken pictures and will report his findings to City Attorney Galligan. 920 LOCUST STREET Planning and Zoning Director Ecker said she sent letters to the car lot a;~ 920 Locust Street. They have some cars parked on city property which they have agreed to remove and clean up the area. .STOP SIGN City Attorney Galligan said she had a request for a stop sign on Maple Street at Watt Street because of people driving too fast. AtSer much discussion about this problem at various locations, Mayor Galligan told Chief Pavey to step up patrols ail over the city. UTICA-SELLERBURG ROAD Attorney Galligan informed the Board that the easement of property on Utica-Sellersburg Road owned by Luther James is to be condemned. Manager Goldman made the motion to pass a resolution condemning an easement of Property from Luther James, seconded by Engineer Miller and carded unanimously. LOAN Manager Goldman made the motion to approve the city borrowing $300,000.00 fi.om .the Sewer Department, seconded by Engineer Miller and carded unanimously. There being no further business to come before the Board of Public Works and Safety, Sewage Office Manager Goldman made the motion to adjourn at 10:20 a.m., seconded by Engineer Miller and carried unanimously. MAYOR AT~FEST: CLERK AND TRF~SURE~k ' MINUTES OF THE BOARD OF PUBLIC WORKS AND SAFETY OF THE CITY OF JEFFERSONVILLE, INDIANA MONDAY, DECEMBER 6, 1999 Mayor Galligan called the meeting ro order at 9:30 a.m., and on call of the roll those members present were: City Engineer Bob Miller, and Sewage Office Manager Bob Goldman. Also present were: Fire Chief Mike Smith, Police Chief Mike Pavey, Asst. Director of Redevelopment David Duggins, Personnel Director Cissy Ellis, Safety Director Rodden, Street Commissioner Grant,Wastewater Treatment Assistant Director Traylor, Parks Superintendent Rick Elliott, Building Commissicaer Larry Decker, Vehicle Maintenance Supervisor Mike Ewton, Planning and Developmem Director Jana Ecker, City Attorney Anne Marie Galligan, and Clerk Lynne Kempf. Sewage Office Manager Goldman made the motion to approve the payroll as presented, seconded by Engineer M[ller and carded unanimously. Engineer Miller made the motion to approve tt~e minutes of 11-29-99 as presented, seconded by Manager Goldman and can'ied u aanimously. THOMPSON LANE SEWER BIDS Jorge Lanz of Jacobi, Toombs, and Lanz opened a bid from Excel Excavating in the amount of $137,260.00. The engineer's estimate was $105,000.00. Manager Goldman made the motion to take the bid under advisement, seconded by Engineer Miller and carried unanimously. HOUSING AUTHORITY CONTRACT Attorney Galligan told the Board that the Housing Authority wants to hire a police investigator fi'om the Jeffersonville Police Department. The Housing Authority will pay the officer through grant money and the Housing Authority will choose the officer. Engineer Miller made the motion to approve the contract between the city and the Housing Authority to hire a police investigator, seconded by Manager Goldman and carried unanimously. 911 pRATT STREET Building Commissioner Decker said he received a complaint on 11-4-99 about the exterior of the house AT 911 Street. After inspection, Building Commissioner Decker said he thinks the house should bc demolished or have an architect recommend repairs to the structure. Mr. Morris, the owner has agreed that the structure should be demolished but needs additional time to do it. Major Galligan told Mr. Morris he could sell the aluminum siding from the house. After some discussion, Engineer Miller made the motion to give Mr. Morris until January 21st, 1999 to demolish the house unless we have snow or zero degree temperatures warming to not above 15 degrees. Mr. Morris will be given one day extra for each day of snow or low temerature, seconded by Manager Goldman and carried unanimously. UTiCA-SELLERSBURG ROAD REMONSTRANCES . Attorney Galligan asked the Board to approve an extension of the remonstrance hearing on Sonja Jackson's compensation for the City's condemnation of her parcel of land until 12'20-99. Engineer Miller made the motion to approve the extension, seconded by Manager Goldman and carried unanimously. In discussing the Hollis-McClelland property, Attorney Galligan said she needs to see a trust document. Manager Goldman made the motion to postpone the Hollis-M¢Clellan damage award hearing nntil 12-20-99, seconded by Engineer Miller and carried unanimously. Manager Goldman made the motion to extend the damage award hearing on the Joe Jackson parcel nntil 12-20-99, seconded by Engineer Miller and carried unanimously. discussion with Mr. Colvln, Manager Goldman made the motion to approve Resolution 99-1/.-13 confirming thc damage award to Mr. and Mrs. Colvin, seconded by Engineer Miller and unanhnously. After discussion with Mrs. Kendall, Manager Goldman made the motion to approve Resolution 99-R-14 confirming the damage award to Wanda Kendall, seconded by Engineer Miller and ed unanimously. ~', LANE Miller said a 15 m.p.h, speed limit sign has been requested again on Willinger Ln. said he would look into it. LIGHTS Engineer Miller made the motion to approve a street light at Wood Alley and a street light at each end of Woerhle Rd, seconded by Manager Goldman and carried unanimously. There being,no further business to come before the Board of Public Works and Safety, City Engineer Miller mac~e the motion to adjourn at 11:00 a.m., seconded by Sewage Office Manager Goldman and carried unanimously. MAYOR ATTEST: '~LERK AND TR~ASL~ ,ff REPRESENTATIVE PAYROLL REQUESTS FROM TIME PERIODS SHOWN JOHN PERKINS (FORMER CITY COUNCILMAN) AFFIDAVIT CONFIRMING ONGOING KNOWLEDGE BY CITY OFFICIALS, INCLUDING MAYOR, OF COMPENSATION METHOD TO MIKE GILLENWATER February 26, 2002 AFFIDAVIT 1. My name is John Perkins. I currently operate Falls Cities Boiler, Inc., located in New Albany,,I, ndianat and do not hold any political office ( except pre¢±nc~c comm±t l:eernan). 2. On or about July 23, 1998, I was a member of the Jeffersonville City Council. During this time Jeffersonville was engaged in planning and fnnd raising for the building of a new animal shelter within the city. 3. On the above date I attended a luncheon meeting at the home of James H. ("Jim") Gillenwater. Als0 present were Mayor Tom Galligan and Mike Gillenwater. 4. As we sat over lunch and discussed planning and construction the subject came up that Mike was going work with Jim and was going to do some fund raising and legal work while being paid $7.50 an hour through the Animal Shelter Department. I remember making a joke to the effect that no lawyer was worth $7.50 an hour. Everyone laughed. We talked about Mike's work as the luncheon continned. 5. At no time during this luncheon did Mayor Tom Galligan state or express any denial, surprise or protest that Mike Gillenwater was being paid for his services through the Animal Shelter Department. It was common knowledge among several city officials that Mike was receiving this small pay for his work on the project. At the luncheon described above it was common knowledge among all four (4) of us that Mike was being paid in this fashion. 6. Further, your Affiant sayeth not. I affirm, under the penalties for perjury, that the foregoing representations are true, as I verily believe. {~..__~ ~~~ _ ~,_~N PERKINS STATE OF INDIANA ) )SS: COUNTY OF CLAP,-K ) Before me, a Notary Public in and for said County and State, personally appeared John Perkins who a, cknowledged the execution of the foregoing document and ~vho, being duly sworn, states the representations contained therein are true. WITNESS my hand and seal this 26th day of February, 2002. otary Public~' Resident of Clark County, Indiana My Commission Expires: April 9, 2009. Printed Name: TERESA J. SMITH SBA AUDIT FINDING THAT MICHAEL GILLENWATER PERFORMED PR°FESSIONAL WORK FOR ANIMAL SHELTER PROJECT STATE BOARD OF ACCOUNTS 302 West Washington Street 4th Floor, Room E418 "INDIANAPOLIS, INDIANA 46204-2738 AUDIT REPORT OF JOSEPHINE B. OGLE ANIMAL SHELTER CITY OF JEFFERSONVILLE CLARK COUNTY, INDIANA January 1, 2000 to December 31,2000 SEP lj8 2001 STAT~ ~__~¢ EXAMINER ,/' TABLE OF CONTENTS Description City Officials ................................................................. Transmittal Letter ............................................................. Audit Results and Comments: Introduction .............................................................. Collections Not Remitted for Deposit ........................................... Contractual Services Paid By Way Of Payroll .................................... Missing Records .......................................................... Official's Bond ............................................................ Exit Conference .............................................................. Official Response ............................................................. Summary ................................................................. ' ' Affidavit ..................................................................... pag~ 2 3 4 4 5-6 6-7 7 8 10 11 -1- STATE OF INDIANA AN EQUAL OPPORTUNITY EMPLOYER STATE BOARD OF ACCOUNTS 302 ',,',rEST WASHTNOTON STREET 4TH FLOOR. ROOM E418 ~'DIANAPOLIS. [ND L, MN'A 46204-2765 Telephone: (317) 232-2513 Fax. (.~17) 232-471 t Web Site: v,~.vv...statc.~.,as/sboa TO: THE OFFICIALS OF THE CITY OF JEFFERSONVILLE We have audited the records of the Josephine B. Ogle Animal Shelter, for the period January 1,2000, to December 31, 2000, and certify that the records and accountability for cash and other assets are satisfac- tory to the best of our knowledge and belief except as stated in the Audit Results and Comments. The finan- cial transactions of this olfice are reflected in the Annual Report of the City of Jeffersonville, Clark County, for the y~ar 2000. STATE BOARD OF ACCOUNTS June 6, 2001 JOSEPHINE B. OGLE ANIMAL SHELTER CITY OF JEFFERSONVILLE AUDIT RESULTS AND COMMENTS (Continued) CONTRACTU, AL SERVICES PAID BY WAY OF PAYROLL M?. Mike Gillenwater was paid $909, $7,122, and $7,800 in 1997, 1998 and 1999, respectively, as a part-time hourly employee, The payments were made by way of the City's payroll process. On April 5, 2001, City officials brought to our attention that no payroll checks should have been issued to Mr. Mike Gillenwater, Based on this allegation, we reviewed the City's payroll procedures and conducted inte~iews. Payroll Process The City payroll process included the following procedure¢: (1) The payroll vouchers were submitted by Mr. James H. Gillenwater, former Director, certifying that Mike Gillenwater worked, in most instances, twenty hours per week. There were n~ time cards on rite to support the Director's certification. (2) The only position available on the salary ordinance for the hourly position, for which Mr. Mike Gillenwater was paid was Assistant Kennel Master. (3) The payroll vouchers were audited by the Clerk-Treasurer. No exceptions were noted by the Clerk-Treasurer, (4) All payroll vouchers were approved by the Board of Public Works with no exceptions taken. Interview~ Mr. Thomas R. Galligan, Mayor, stated he was aware that Mr. Mike Gillenwater performed various professional services related to the construction of a new animal shelter. However, it was Mr. Galligan's understanding'that Mr, Mike Gillenwater was performing these services pro bono. Mr, Galligan also stated he did not see Mike Gilleawater's name on the payroll vouchers. Mr. Galligan stated that the Board of Works does not perform a detailed review of payroll vouchers prior to approval since they rely on the certifications of the Clerk-Treasurer and the department heads. Mr. Mike Gillenwater provided us with information showing the nature of the services he performed. These services included legal work and various aspects of planning and financing the new animal shelter. Mr. Mike Gillenwater stated he was not aware that he was being reported as an hourly employee. He stated he performed these ser',4ces at the request of his father, Mr. James H. Gillenwater, who was the Animal She~- ter Director. It was Mr. Mike Gillenwater's understanding that the City, through Mr. James H. Gillenwater, had approved his rate of compensation. Mr. Mike Gillenwater further stated he considered the payments he received from the City to be nomlnal compensation in relation to the value of the services he performed. Mr, James H. Gillenwater, stated he hired his son, Mike Giltenwater, to assist on the new animal shelter. Mr. James H. Gillenwater stated the amount paid Mike Gillenwater was to cover the cost of Mike G~llenwater s health tnsurance. M. James H. Gillenwater stated the reason Mr. Mike Gillenwater was reported as an hourly employee was because that was the only category in the Animal Shelter budget where employ- ees' wages could be charged. Mr. James Gillenwater stated It was his understanding that the Mayor was aware his son w~s working and was being compensated to cover his health insurance. -5- JOSEPHINE B. OGLE ANIMAL SHELTER CITY OF JEFFERSONVILLE AUDIT RESULTS AND COMMENTS (Continued) lC 5-15-6-3(d) states in part: "No financial records or records relating thereto shall be destroyed untif · . . the audi't' of the r~cords by the state board of accounts has been completed, report filed, and any exceptions set out in the report satisfied .... " ./' Supporting documentation such as receipts, canceled checks, invoices, bills, contracts, and other public records must be available for audit to provide supporting information for the validity and accountability of monies disbursed. (Accounting and Uniform Compliance Guidelines Manuat for Cities and Towns, page 53-8) ~FFICIAL'S BOND The City has a position schedule bond with Ohio Farmers insurance Company that has run corn tinuous for several years. Bond coverage in the amount of $5,000 has been in effect since September 23, 1997 for each position. The positions covered include the Director and Operations Coordinator (OIfice Man- ager). ¸'7' JOSEPHINE B. OGLE ANIMAL SHELTER CITY OF JEFFERSONVILLE AUDIT RESULTS AND COMMENTS (Continued) Mr. Tom Galliga0 stated that he specifically turned down Mr. James H. Gillenwater's request in 1997 to have Mr. M ke Gl enwater placed on the City's insurance. We interviewed Mr. C. Richard Spencer, Jr., former Clerk-Treasurer, and three other Board of Works members besides Mr. Tom Galligan. Each person stated they were not aware of the compensation arrange- ment described by Mr. James H. Gillenwater. Audit Conclusions Based on information supplied by Mr. Mike Gillenwater, it would appear that Mike Gillenwater per- formed services that benefited the City of Jetfersonville. The City of Jeffersonville has authority to approve such expenditure for professional services. Upon our inquiry, City officials stated they would decline to retro- actively approve Mr. Mike Gillenwater being paid tot professional services, Mr. James H. Gillenwater certified on payroll vouchers that Mike Gillenwater worked as an hourly employee when he was aware that his services were contractual in nature and not reflecCve of the duties approved in the salary ordinance.' In addition, there was no appropriation approved in th~"Animal Shelter budget for the professional services rendered by Mr, Mike Gillenwater. Accordingly, Mr. James H. Gillenwater had no authority to obligate the City for the professional services rendered by Mr. Mike Gillenwater, lC 36.4-8-12(b) states in part: "A city department, officer, or employee may not obligate the city to any extent beyond the amount el money appropriated for that department, officer, or employee. An obligation made in violation of this section is void." lC 36-4-8-13 states in part: '% city otlicial who recklessly. · · enters into an obligation prohibited by section 12 of this chapter; commi~s a Class B misdemeanor and is'liable on his official bond to any person ' " "to injured by his actions." lC 36-1-2-12 defines person include governmental entity, which we conclude would include the City of Jeffersonville. Mr. James H. Gillenwater is covered by a continuous bond in the amount of $5,000 during his 'term of office through Ohio Farmers Insurance Company, as surety. We recommend that City Officials consull the City attorney whether they have any remedy under lC 36-4-8-13. This report has been certified to Steven Owen, Special Prosecutor, for contemplation el any legal action concerning this matter· Receipt Books prior to 2001 were not presented for audit. lC 5-15-6-3(f) concerning destruction of public records, states in part: "Qdginal records may be disposed of only with the approval of the commission according to guidelines established by the com- mission .... -6- James H. Gillenwater, Sr. 427 East Chestnut Street Jeffersonville, Indiana Jeffersonville, IN 47130 (812) 282-4073 June 29, 2001 State Board of Accounts 302 W. Washington Street, Room E418 Indianapolis, ITl 46204-2738 Atm.: Ivlarty Fontaine . Re: Jeffersonvilte Animal Shelter Audit To whom it nlay concern: This is my Official Response to the 4 page Exit Conference report (of which 2 pages were the "O ~cials' Response") prepared after the recent attdit of the City of Jeffersonville Animal Shelter. 1) The "Period Examined" on the first page of the "Officials' Response" states: "i-1-00 to 12-31- 00". The report seems to kndude a differeot period of time. 2) The s atements of ndependent witnesses that have confimwd Mayor Galligan ,.vas aware Michael Gillenwater ,,vas being paid have not been mentioned in tile report, even though they were interviewed and confirmed this. ~ ' ,, ' -oularitles rela ng to tile "employment" ofM chael Oillenwater ,,,,,ere not noted in 3) Bookke*:plno lffco ' ~'~,rm~d that c.'~ta n documents (soch as a W-4) conld n2t be located. the report. NI chad Gmenwater was m .............. Likewise, certain City of Jeffersonville internal procedures relating to "regnlar" en-tployees were not followed 4) The .employees of the Clerk/Treasurers of'flee personally knew and were aware that Michael Gilknwater ,.vas an attorney (since he was the Jeffersonvilie City Attorney for 4 years). They were aware that he did not work as an hoorly employee of tile shelter, yet did not direct me to process the claims in any way different than what the mayor had approved. 5) There ,,vas no mention itl the report of the failure of the built-in system of checks and balances provided by statute that presumably should have revealed a problem with paying Michael Gillenwater in the manner the Mayor told me to. For over 2 years I relied on the approval o? the Clerkfrreasurer's employees and the Board of Public \\'orks were in continuing to present claims in tile manner I was directed to. I sec no attempt to'criticlze the people who shouk! have not approved these ch[ms, bat did~ The members of tile Board of Works either: l) failed to review claims presented to them, as required by statute, for a period of over 2 years; or, 2) did review the claims and continued to approve claims for Michael Gillcnwatcr for providing profcssional/fundraising services for tile city. I ~ ill nla~c m) sea .......... Jim Gillenwater -9- Documents (county warrant, city receipt, proof of city deposit) illustrating county-city transfer of $100,000.00 as authorized by commissioner minutes and Clark Circuit Court. IN CLARK CIRCUIT COURT STATE OF INDIANA IN RE THE MATTER OF A TEMPORARY LOAN FROM CLARK COUNTY, INDIANA GOVERNMENT TO THE JEFFERSONVILLE/CLARK COUNTY ANIMAL SHELTER PROJECT CAUSE NO. 10C01-9902-CP-? c~ _ ORDER GR.haNTING AUTHORIZATION AND DIRECTING~ iSSUANCE OF COUNTY WARtLkNT. Upon Petition of the Board of Corn.missioners of Clark County, Indiana, and the court being duly advised in the premises; it is hereby ordered as follows: 1. That the Auditor of Clark County and the Treasurer of Clark County are ordered and directed to immediately issue a county warrant in the sum of $100,000.00, h'om Fund #271, which fund is under the control and management of the Board of Commissioners of Clark County, Indiana, for purposes of the Board making a temporary loan to the '*Josephine Ogle Animal Shelter Construction Project", of which the Board is a co-sponsor with other municipalities; 2. That the Auditor kud Treasurer are ordered and dixected to issue said county warrant without the necessity of couuty publication. Said warrant, when issued, shall be delivered directly to the office of the Boa.rd so that the Board can transmit the county warrant to the appropriate fund manager for the ~struction project. CLARK CIRCUIT COURT Copies to: Daniel E. Moore, 411 Watt St., Jeffersonville, IN 47130 Ciark County Auditor, 501 E. Court Ave., Jeffersonville, IN 47130 Clark County Treasurer, 501 E. Court Ave., Jeffersonville, IN 47130 0 0 0 0 0 Z [] ~2 Z 0 .~ I.- Jefflawyer cleared of wrongdoing. at shelter Mayor had questioned payments he received from animal agency Jeff'lawyer GJllenwater cleared of wrongdoing Continued from Page One . "I didn't find it to bca very serious offense that I'd want to prosecute two years later," he said. "Wd be a waste of resources to prosecute somebody for such a minor event." Owen said the statute of limitations to prosecute any misuse of funds, a ciass B misdemeanor, ran out in De- cember. Mike Gigenwater refused to com- ment yesterday on Owen s finding , sa)dng he wanted to read the special prosecutor's final rcport before speaking with reporters. Owen said he planned to file his re- on in Clark County Superior Court [~ter this week. Gillenwater did say that he had ex- pected no criminal charges to bc filcd In the investigation. "I'm not surprised," he said. Jim Gillemvatcr ~r. could not be rcached for comment yesterday'. Throughout the [rives igaho.n, thc '~,mchwaters ctal~od la Ga ~gan had targeted them for political rea- Mike Gillcnwater represcnls the cry of Charlestown, which is in a lc- gal battle with Jcffcrsonvilie over an- nexations at the former Indiana Army ation of a two-mile planning area Jim Gillenwater has said he an- gered Galligan in the late 1990s with decisions ho made as president of the NA~W Reuse Authority Board, the agency managing the industdal park Galligaa, the mayor's wife, said yes- erday that politics had nothing to do with the complaint against the Gillcn- wa ers. She said the city plans to take flcc in an attempt to force blike Git- lenwater to reimburse the city for the Jef~ersonviIIc officials also filed a complaint last year with the state professional conduct. Although the s~alus of its investigations, officials there said yesterday that they had charges, of wron g doin g a g ainst Mike Anne bfarie Oalligan said city offi- cials were disappomted that Owen had refused to prosecute Jim Gillcn- water for allegedly misusing the shel- ter's f~nds. "That to mc is very disappointing," she said. "I feel like the taxpayers of Jcffcrsonville deserve better than The State Board of Accounts audit found that Jim Gillenwater had certi- fied SI5,831 in hourly payroll vouch- ers for his son, even though he knew Tom Galligan, as a member of the board of public works, signed off on the payroll requests each week. But the mayor said he never noticed that Mike Gdlenwater had submhtod claims for payment. prosecutor because Mike GJl[cnwatcr has political tics to Clark County Owen defended his decision not to prosecute, saying he found it hard to believe city officials didn't notice that Mike Gdlcnwatcr was being paid from shelter funds for two years. He said he met whh Tom Oalligan on Friday to try to explain his deci- sion, but thc meeting ended abruptly room upon hearing that no charges would be filed. Anne Marie GalIigan said her hus- band didn't need to hear Owen's rea- soning. "He didn't need any lengthy expla- nation.'' she said· "He wasnq buying it. There's no use in sitting here and body explain what they did." g 8 2002 INDIANA CLARK SUPERIOR C'0URT STATE OF u~u COUNTY OF CL~-~k.S rt NO.C~USE NO: 10D03-0106-MC-017 IN RE THE MATTER OF TI~E APPOINTMENT OF SPECIAL PROSECUTOR FINAL REPORT OF SPECIAL PROSECUTING ATTORNEY Comes as follows: now the Prosecuting Attorney, Steven L. Owen and reports to the Court That I was appointed by this Court on May 28th, 2001, to serve as Special Prosecuting Attorney to investigate or prosecute, if appropriate, the facts and circumstances relating to the activities at the Clark County Animal Shelter, and matters reasonably related to the investigation initiated by the Jeffersonville Police Department Police report #00-999. On June 7, 2001, I accepted the appointment as Special Prosecutor in this matter. That an investigation was initiated by the Jeffersonville Polic~ Department on March 22, 2001, for "Ghost Employment" pursuant to I.C. 35-44-2-4. On May 17, 2001, the investigation was terminated to the appearance of impropriety. The information obtained as a result of this investigation was given to the Indiana State Board of Accounts. That an investigation was conducted by the Indiana State Board of Accounts and made public on September 18, 2001. That a formal request for an Indiana State Police investigation was ma. de on October 11,2001. Said investigation has been completed. That I.C. 35-44-2-4 requires that in order for the charge of "Ghost Employment" to be maintained, the State must prove that the employer hired an employee and the employer failed to assign and duties to the employee or that the employee failed to perform duties related to the operation of the govemmental entity. That after reviewing the above investigations, I would agree with the audit position of the Indiana State Board of Accounts and conclude that Michael Gillenwater did perform legal services and fundraising services for the Jeffersonville/Clark County Animal Shelter Construction project. That after reviewing the above cited investigations, the Mayor of Jeffersonville, Tom Galligan, contends that the services that were performed were to be offered pro bono, or for no compensation, while Mike Gillenwater contends that he had entered into an oral agreement with the Mayor to be compensated in the amount that was paid. This 10. 11. disagreement as to the terms of this service contact is the type of disagreement suited for civil actions. It is not a criminal violation. That according to the investigation, it is obvious that Mr. James H. Gillenwater did not have the authority, without the City of JeffersonviIle's approval, to obligate the city for the professional services rendered by Mr. Mike Gillenwater. However, the City of Jeffersonville, could have corrected this situation by retroactively approving Mr. Mike Gillenwater being paid for professional services. And while according to I.C. 36-~-8- 12, it is a class B misdemeanor to "recklessly" "obligate the city to any extent beyond the amount of money appropriated," it is this prosecutor's opinion that the facts of this case do not squarely fall within this violation. The civil contractual nature of the dispute relating to Mr. Mike Gillenwater, the years of payroll vouchers, and W-2 statements of Mr. Mike Gillenwater, and the public interaction between the parties regarding this animal shelter, blur the mens rea requirement of this statute. It is my opinion that a prosecution of Mr. James GillenWater for this minor criminal violation, would not have been in the best interest of the public to pursue. Also because of the lateness of the reporting of this incident to law enforcement authorities (some 15 months after it's occurrence,) and the necessity of a full & complete investigation by the State Board of Accounts and the Indiana State Police, the statute of limitatid'ns has expired and prohibits prosecution. However; it must be emphasized, that the running of the statute of limitations was not an oversight by this prosecutor. The nature and circumstances, surrounding the payment of Mr. Mike Gillenwater for his services rendered the prosecution under this minor statute without public merit and the decision not to prosecute would have been made regardless of the statute of limitations issue. That my investigation has also concluded a review of $100,000.00 transfer by the Clark County Board of Commissions to Jeffersonville City and credit card expenditures by Mr. James Gillenwater Sr. to determine if any criminal wrongdoing was present. These investigations were done as a result of complaints made by Mayor Tom Galligan and the City Attorney of Jeffersonville, Indiana. After a thorough review of these complaints, the State found no criminal wrongdoing present. This report concludes my work with respect to the Court appointment in this Cause. Steven L. Owen Prosecuting Attorney .,. J 6 /-'~ ~oq no ~o;nlol~ ~ uodn pesoq s; I! IOLLL ~. ',v,oi Zq pa.~inb~ so pelomlu~q no ,(.[np s! lt. lo'4.L -tu~o ~do~d m st l!~loqJ~ / i '1~a~o3 ) .4~lua~oddo s.t l.t loq. L /.'~.llloqlr, o ~olnlols ) ' t '~o[/.q pa~.mba.~ so paloo~ua~no ZInp s! I! lOtLL